Democracy Amid the Battle of the Oligarchs?

November 16, 2015

The Court recently decided that states can restrict campaign solicitation by judges but only judges. It left all the rest of its protections of economic privilege in place.

Inequality in the United States is making democracy increasingly unsustainable and unlikely. It also seems unlikely that Americans in sufficient numbers will rebel before it’s too late. The gun rights folk will, if anything, protect the current distribution of wealth, and enforce their prejudices. Liberals aren’t sufficiently united – there are race liberals, economic liberals, and big money liberals. That’s a big tent, not a movement. Conservatives believe in democracy in towns they control, and join the attack on giving the ballot to anyone else. They put institutions that they rule – specially chosen tribunals, faceless and ruthless markets – ahead of democratic government, hiding their contempt for democracy behind the claim that government, democratic government, is the problem. So behind all the hoopla of the Tea Party there is a real threat that this government of, by and for the people will perish from the earth.

Then what? At the turn of the last century democracy was rescued from abroad, by unrestricted immigration that turned into a tide of votes – organized by totally corrupt political parties but organized effectively. The corruption temporarily led the wealthy to put cleaning up government ahead of cleaning the pockets of the poor.

But here’s the point, when the wealthy and powerful take control of the whole shebang, political money, jobs, the media, only the wealthy can take it down. That means that democracy will return only when the wealthy battle each other – and when the Gods fight, the heavens rain fire.

What could start such a battle among the wealthy? Kevin Phillips wrote about the way that different national Administrations shifted wealth among sectors of the economy – from mining and manufacturing to oil and finance.[i] So one option is to take sides among the giants. We argue about football teams. Why not fight about who gets wealthy; maybe they can be sufficiently provoked to provide a little democratic space. Remember it was the kings of Spain and Portugal who restored democracy to their domains, not the Republican army.

Short of that, we could play for the patronage of the moneyed people, trying to figure out what little we can do for them so they will brush us the crumbs off their table. Welcome to the so-called democracies of Central and South America, often described as clientilistic democracies by political scientists. Democracies they are not. They are competing bands of hirelings and sycophants fighting for the right to root for the winning team and pick up the t-shirts, ball caps and plastic trophies of victory.

So are you on the oil, gas and pollution Koch brothers team? The casino team of Sheldon Adelson? The financial teams of Warren Buffet or George Soros? The electronics team of Bill Gates? Step right up ladies and gentlemen; it’s going to be a war of the Gods. There’ll be droughts, fireworks, earthquakes, and lots of blood, folks, so get yourselves on the right team.

We could try to pull the Supreme Court off the ramparts of privilege and regain control over the use of money in politics. Or we could hope for the best ‘til Brutus assassinates Caesar – though that could lead to consolidation of tyranny as it did for the Romans.

Can we rally to save the planet and save democracy? As we used to say in Brooklyn, before the Dodgers finally won the Series, “ya gotta b’lieve.”

Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Unfit for Democracy: The Roberts Court and the Breakdown of American Politics (NYU Press 2016). He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran. This commentary was broadcast on WAMC Northeast Report, November 10, 2015.

[i] Kevin Phillips, Wealth and Democracy (Random House 2002).

The Anti-Union Court

July 1, 2014

The Court decided yesterday in Harris v. Quinn that at least some of the employees who work under a collective bargaining agreement don’t have to share in the costs of negotiating that agreement. The Court says it violated their First Amendment rights. How many unions and employees it will apply to is still unclear but this is not the first move the Roberts Court has made in that direction.[i] Sometimes the patterns matter much more than the individual decisions, whether good or bad. Read the rest of this entry »

Casinos and the Board of Elections

November 5, 2013

When this is aired, I will be in Washington, D. C., where my students and I went to the U.S. Supreme Court to hear cases argued that we have been studying. Since it is also election day, I had to fill out an absentee ballot. On the ballot, the casino proposition leads the group of ballot propositions. Governor Cuomo had “submitted a concurrent resolution to the State Legislature to amend article I, § 9 of the State Constitution to allow for ‘casino gambling regulated by the state.’”[1]

Having been twice approved by the legislature, the proposed amendment is being submitted to New York voters. But the State Board of Elections added the following language to the proposal for the obvious purpose of encouraging voters to support it:

“for the legislated purposes of promoting job growth, increasing aid to schools, and permitting local governments to lower property taxes through revenues generated.”[2]   Read the rest of this entry »


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